Supreme Court Republicans: it’s presumptively unconstitutional for government to work
By 
Above: reading the Federalist Society Constitution
The Supreme Court today upended more than 150 years of precedent to hold invent the right to a jury trial for those subject to civil penalties from administrative government. As Sotomayor’s dissent explains:
Throughout our Nation’s history, Congress has authorized agency adjudicators to find violations of statutory obligations and award civil penalties to the Government as an injured sovereign. The Constitution, this Court has said, does not require these civil-penalty claims belonging to the Government to be tried before a jury in federal district court. Congress can instead assign them to an agency for initial adjudication, subject to judicial review. This Court has blessed that practice repeatedly, declaring it “the ‘settled judicial construction’ ” all along; indeed, “ ‘from the beginning.’”Unsurprisingly, Congress has taken this Court’s word at face value. It has enacted more than 200 statutes authorizing dozens of agencies to impose civil penalties for violations of statutory obligations. Congress had no reason to anticipate the chaos today’s majority would unleash after all these years.
Today, for the very first time, this Court holds that Congress violated the Constitution by authorizing a federal agency to adjudicate a statutory right that inheres in the Government in its sovereign capacity, also known as a public right. According to the majority, the Constitution requires the Government to seek civil penalties for federal-securities fraud before a jury in federal court. The nature of the remedy is, in the majority’s view, virtually dispositive. That is plainly wrong. This Court has held, without exception, that Congress has broad latitude to create statutory obligations that entitle the Government to civil penalties, and then to assign their enforcement outside the regular courts of law where there are no juries.
Beyond the majority’s legal errors, its ruling reveals a far more fundamental problem: This Court’s repeated failure to appreciate that its decisions can threaten the separation of powers. Here, that threat comes from the Court’s mistaken conclusion that Congress cannot assign a certain public-rights matter for initial adjudication to the Executive because it must come only to the Judiciary.
The majority today upends longstanding precedent and the established practice of its coequal partners in our tripartite system of Government. Because the Court fails to act as a neutral umpire when it rewrites established rules in the manner it does today, I respectfully dissent.
The overturning of the public right doctrine means that it would require an enormous increase in funding to allow for jury trials to enforce many federal regulations, something that is not going to happen and of course this is the entire point. And Sotomayor’s point about how the is the arrogation of power into the judiciary flying under the false flag of protecting the separation of powers is entirely accurate.
As Ian Millhiser notes, this suddenly expansive view of the Seventh Amendment right to a jury in civil cases is also highly selective:
In light of the Court’s newfound appreciation for civil jury trials, it’s worth noting that the Court’s Republican appointees have historically read the Seventh Amendment very narrowly in cases that do not involve hedge fund managers.
The Court has long held that companies may force their workers and consumers to sign away their right to sue that company in a real court — one that can conduct a jury trial — and instead have the case heard by a private arbitrator. The Court has, at times, claimed that forced arbitration is lawful because workers and consumers nominally consent to arbitration when they decide to do business with the company. But many of the Court’s arbitration decisions raise very serious questions about whether the justices understand what the word “consent” means.
In Epic Systems v. Lewis (2018), for example, the Court held that an employer can simply order their employees to give up their right to a jury trial, under pain of termination.
So the Court’s approach to the Seventh Amendment is incoherent, and after Jarkesy, it could lead to dozens or even hundreds of federal laws arbitrarily ceasing to function.
Abirtrainess, ipse dixits, casual dismissals of decades of precedent, sheer incoherence — all critical tools if you want to do everything you can to ensure a government that works only for the powerful.